Oblique intent

Why the name? Well criminal law afficionados will recognise the phrase 'oblique intent' as referring to a problem of mens rea:can a person who intends to do x (such as setting fire to a building to scare the occupants) also be said to have an intention to kill if one of the occupants dies? This is a problem that has consumed an inordinate amount of time in the appeal courts and in the legal journals, and can be taken to represent a certain kind of approach to legal theory. My approach is intended to be more oblique to this mainstream approach, and thus to raise different kinds of questions and issues. Hence the name.

Monday, 5 December 2011

On the codification of criminal procedure

As any student of Scots criminal law quickly learns, the criminal procedure is regulated by the Criminal Procedure (S.) Act 1995. While not quite a code, as it does not pretend to be complete or comprehensive, it does represent a kind of de facto codification of the area, as it brings together and consolidates all the important legislation. It is, however, scarcely a compelling argument for codification, as it is a complex and unwieldy piece of legislation. it is not even easy to know how many sections it contains. There are 309 numbered sections, with 12 schedules, but the actual number is probably double this as many sections have been added. Thus section 271 (on witnesses) is followed by 25 further sections (numbered 271A-Z), which have been inserted by two separate statutes - and the sections themselves are further subdivided into numbered and lettered clauses and sub-clauses. This is a practice which has been followed throughout the Act, to the extent that, in areas where there have been many amendments, some sections with double letters have been inserted. While this is arguably supported by an argument for convenience - at least all relevant provisions can be found in a single place - the overall effect is confusing and difficult to follow.

J.H.A. Macdonald
The 1995 Act is itself a consolidation of an Act of 1975, which itself consolidated the Criminal Procedure (S.) Act 1887 - which was the first such consolidation in Scotland. This Act did not have its origins in any government programme of reform, but was rather the brainchild of J.H.A. Macdonald (later Lord Justice- Clerk Kingsburgh), and author of A Practical Treatise on the Criminal Law of Scotland (1867). The circumstances of its passing are recorded in his memoir, Life Jottings of an Old Edinburgh Citizen (1915) (a book which is almost as dull as its title).

Macdonald was appointed Lord Advocate in 1885 and was shortly after elected to Parliament. While holding this office he brought forward a Bill to amend and simplfy criminal procedure in Scotland. It was, he records, a "bulky Bill" containing some 77 clauses, and he was advised by parliamentary colleagues that a Bill of this length had little chance of passing. That it passed was then due to chance. The Irish Nationalists withdrew from the House in protest at a government bill on Ireland, which was then passed quickly. Macdonald's Bill was then brought forward, and as this was to be followed by a Scottish licensing bill which had opposition support, this also was pushed through in llittle more than an hour and a half.

Such are the origins of codified criminal procedure in Scotland - no grand plan, and enactment without proper review. In certain respects, then, it is surprising that it has worked so well for so long. but after 125 years of amendment and accretion of clauses it might be time to review and simplify the law.

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